We learned last week that two panel decisions of the Sixth Circuit will receive another round of review. First, the Supreme Court granted certiorari to the Sixth Circuit in Salazar v. Paramount Global. Second, the Sixth Circuit granted rehearing en banc in Clippinger v. State Farm Auto Ins. Co. We preview both cases in a pair of posts.
First, Salazar is an intriguing case of statutory interpretation arising under the Video Privacy Protection Act. The question presented is whether the Act’s phrase “goods or services from a video tape service provider” “refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.” The Sixth Circuit divided over that question, with Judges Nalbandian and Batchelder answering only “audio-visual content” and Judge Bloomekatz taking the broader view.
The Video Privacy Protection Act has an interesting origin story. Congress passed it after Judge Robert Bork’s confirmation hearing on his unsuccessful Supreme Court nomination in 1987. Adverse senators used the judge’s leaked video rental history against him. Congress, in response, sealed off that material from disclosure. The Act “creates civil liability for any ‘video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.’” 18 U.S.C. §2710(b)(1).
The parties are Michael Salazar and Paramount Global, owner of the website 247Sports.com, which reports on college sports recruitment. Salazar subscribed to the 247Sports newsletter and watched its highlight videos on Facebook, and the website kept track of his video viewing history. Salazar sued under the Act, but the district court dismissed his claim on the pleadings because it concluded he was not a “consumer,” as defined.
The divided Sixth Circuit affirmed. Under the Act, A “consumer” is a “subscriber of goods or services from a video tape service provider.” Presumably, 247Sports is such a provider because its highlight tapes are “audio visual materials.” But Salazar was not a “consumer,” the panel majority determined, because he subscribed only to the website’s newsletter. The court employed the “whole-text” canon of interpretation, giving meaning to the Act’s definition of “consumer” in context rather than “chopping it up and giving each word the broadest possible meaning.” From that perspective, the court concluded that “the most natural reading … shows that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’” The 247Sports newsletter to which Salazar subscribed was not in that vein.
The majority acknowledged that its decision splits “with the Second and Seventh Circuits’ approach to this issue”—a point the dissent (and cert. petition) did not lightly cast aside. Judge Bloomekatz’s response: The “majority’s reading of the VPPA contravenes the plain language of the statute and, thus—perhaps unsurprisingly—conflicts with the reasoning of our sister circuits.” Judge Bloomekatz’s syllogism was thus: a “consumer” is a “subscriber of goods or services from a video tape service provider”—247Sports delivers video tape content (college sports recruitment videos), so Paramount is a provider—Salazar subscribes to one of its goods or services, the newsletter—ergo, Salazar is a consumer. The sticking point is whether the good or service subscribed to must be of audio-visual character. To the majority, context said “yes”; to the dissent, plain text said “no.”
With divided circuits and a pair of iron-sharpening-iron opinions from the Sixth Circuit, the Justices will have the last word on the Video Privacy Protection Act’s reach. Cudos to Salazar’s counsel for the cert. grant in this case about a high school sports recruiting website. Salazar opened his petition to the Court with a creative and fitting reference to the greatest high school sports movie of all, Hoosiers. Salazar’s invocation of the classic Indiana basketball film may have connected with Justice Kavanaugh, the youth basketball coach, or Chief Justice Roberts, who grew up in Indiana, or Justice Barrett, who lived in Indiana as recently as 2020.
And as for predictions, the Court reversed more than three-quarters of its cases last term. But don’t overread the numbers. The Sixth Circuit was affirmed half the time (2/4 cases) last term and already was unanimously affirmed this term in Coney Island Auto Parts Unlimited, Inc. v. Burton. Salazar could go either way.
